New 29-Month OPT Rule
for Certain STEM Programs
The Department of Homeland Security (DHS) announced on April 3, 2008, the publication of an Interim Final Regulation that makes significant changes to Post-Completion Optional Practical Training (OPT) for F-1 students.
The regulation took effect upon publication of the rule in the U.S. Government’s Federal Register of April 8, 2008.
Important Key Provisions:
OPT extension to 29 months for STEM students. The 12-month limit on F-1 OPT will be extended by 17 months, for a total of 29 months, for certain STEM degree holders as follows:
Eligible STEM fields include:
Computer Science Applications
Engineering & Engineering Technologies
Biological and Biomedical Sciences
Mathematics and Statistics
Medical Scientist (M.S., Ph.D.)
Additional Requirements for 17-Month Extension of OPT
Student must be currently participating in a 12-month period of OPT, working for a U.S. employer in a job directly related to the student’s major area of study.
Student must have successfully completed a bachelor’s, master’s, or doctoral degree in a field on the DHS’s STEM Designated Degree Program List, from a SEVIS certified college or university.
Student must have a job offer from an employer registered with the E-Verify employment verification system.
The student has not previously received a 17-month OPT extension after earning a STEM degree.
The Designated School Official (DSO) must recommend the 17-month OPT extension in SEVIS, after verifying student’s eligibility, certifying that the student’s degree is on the STEM Designated Degree Program List, and ensuring that the student is aware of his or her responsibilities for maintaining status while on OPT.
Student will have to apply for the 17-month extension on Form I-765 and provide the applicable fee.
Students who timely file an application for the 17-month OPT extension will be able to continue employment while the extension application is pending, until a final decision is made on the I-765 application, or for 180 days, whichever comes first.
The employer must agree to report the termination or departure of the student to the DSO or through “any other means or process identified by DHS.” An employer must consider a worker to have departed when the employer knows the student has left employment, or if the student has not reported for work for a period of 5 consecutive business days without the employer’s consent.
The student must also agree to provide a report every six months to the International Student Office (ISS) of his former school to verify the above information.
All F-1 students seeking to extend their OPT by 17 months can only do so if at the time of filing, the student is employed by, or has a job offer with, an E-Verify participating employer.
E-Verify was formerly known as the Basic Pilot/Employment Eligibility Verification Program. E-Verify is an Internet-based system operated by the Department of Homeland Security in partnership with the Social Security Administration.
E-Verify allows participating employers to electronically verify the employment eligibility of their newly hired employees. E-Verify is free and voluntary. However, there are concerns whether employers will want to join E-Verify. Currently, less than one percent of all U.S. employers are enrolled in E-Verify. If an employer joins, the employer will have to verify ALL new employees, including U.S. citizens, in E-Verify.
Participating employers must permit visits by representatives for Homeland Security and the Social Security Administration to review their employment records and interview employees.
For more information, please visit E-Verify at the following Web site:
Initial OPT Applications New Filing Deadlines
At this time, an applicant for post-completion OPT must file their application before their degree completion date. Under the new rule, a student will be able to file the OPT application up to 90 days before the degree completion date, and up to 60 days after the degree completion date. However, the application for OPT must be submitted to the USCIS Processing Center within 30 days of the date the school enters the recommendation for OPT into the SEVIS record.
Timeline for OPT
The beginning date for the OPT Employment Authorization Document (EAD) will be the date requested by the student or the date OPT is approved at the USCIS Service Center, whichever is later. But, there is an exception: the authorization period for the 17-month OPT extension begins the day after the expiration of the initial post-completion OPT employment authorization, and ends 17 months later, regardless of the date the extension is approved.
Requirements for Students and Employers While on OPT
All students on OPT must report to the ISS at Kean University:
The name and address of their employer
Any change to the name and address of the employer
Any interruption of such employment (changes or termination
Students with an approved 17-month OPT extension must report the above information to the ISS office at Kean University within ten days.
After approval of the 17-month extension, students must also make a validation report to the ISS office at Kean University every six months starting on the date the extension begins and ending when the OPT ends.
This requirement is to make sure that we have accurate information of your employer and your address.
The employer must agree to report the termination or departure of the student to the International Student Office of the student’s former school, or through any other process chosen by the Department of Homeland Security.
More information will be provided about requirements that your employer must fulfill after termination of the 17-month OPT extension.
Post-Completion OPT is Now Dependent on Employment
Students on post-completion OPT may not accrue an aggregate of more than 90 days of unemployment under the initial 12-month period of OPT. Students granted a 17-month OPT extension may not accrue an aggregate of more then 120 days of unemployment during the total 29-month OPT period.
Elimination of the H-1B “Cap-Gap”
The H-1B “cap-gap” occurs when a F-1 student’s status and OPT work authorization expires during the current fiscal year before the student can start approved H-1B employment during the next fiscal year that begins on October 1. For example, a student whose OPT ending date is July 16, and whose employer successfully files an H-1B petition for a job that is subject to the H-1B “cap” and starts October 1, currently needs to stop employment as of July 16, and depart the United States on September 15 (the last day of the 60-day grace period following OPT). While outside the United States, the student must obtain an H-1B visa, and cannot re-enter the United States any sooner than 10 days prior to the H-1B start date.
Under the new rule, a student currently on OPT who is the beneficiary of a timely-filed H-1B petition that requests an employment start date of October 1 of the following fiscal year will have his or her duration of status and OPT employment authorization extended to that date.
Should the pending H-1B petition ultimately be denied, the student will have a 60-day grace period from the notification date of the denial to depart the United States, obtain admission to a new F-1 SEVIS-approved school, or file an application for a change of status.
There are several steps that need to be put into place before these new rules can effectively take place:
SEVIS needs to be re-programmed to allow schools to recommend extending authorized OPT for an additional 17 months for qualified students;
SEVIS needs to publish interim instructions to schools so that schools will be able to implement the new procedure;
Form I-765, Application for Employment Authorization, must be updated to add new fields for field of study, name of employer, and the employer’s E-Verify number; and
Schools need to update their processes, procedures, and informational materials to accommodate all the new requirements.
WEB RESOURCES for OPT 29-Month Rule
The following resources are excellent available on the new OPT rule
Department of Homeland Security Announcement
US Citizenship and Immigration Services Q and A
NAFSA: Association of International Educators Resource on the Interim Final Rule
Text of Interim Final Rule
http://edocket.access.gpo.gov/2008/E8-7427.htm (text format, 27 pages)
http://edocket.access.gpo.gov/2008/pdf/E8-7427.pdf (pdf file, 13 pages)